What do you do when an OSHA officer shows up at your business? Start with these do’s and don’ts:
Always Contact an Attorney as Soon as Possible
While you have the right to representation during an OSHA investigation, OSHA will only wait for a limited time for your attorney to arrive before beginning the inspection. If you report an accident or injury to OSHA, contact an attorney right away to prevent or prepare for an OSHA investigation.
Otherwise, you can contact your lawyer as soon as you know an OSHA investigation will take place.
If an OSHA compliance officer shows up at your site, call our OSHA defense attorneys at (713) 489-2028. We will move in quickly to guide you through the process and help manage your response.
Do Prepare by Designating & Training Personnel to Handle OSHA Inspections
OSHA officers usually ask to see the facility manager or the site superintendent. If there is no manager or superintendent on site, pre-designate management personnel or an employee representative to participate in OSHA inspections.
Don’t allow an opening conference or inspection until pre-designated personnel are present.
Do Be Professional and Polite to the OSHA Inspector at All Times
When the OSHA compliance officer arrives, the company guard or receptionist should immediately escort the inspector to a comfortable waiting area and alert the pre-designated personnel of the inspector’s arrival.
First impressions are important. Don’t keep the OSHA compliance officer waiting for longer than necessary.
Conduct the opening conference in a suitable meeting room and treat the OSHA compliance officer with courtesy and kindness. Keep a comfortable, professional, and polite environment for the inspection during the opening conference, walk-around, and closing conference.
Do Ask Questions
Upon their arrival, ask the OSHA compliance officer for their credentials and the reason for their visit. Determine whether the officer has a subpoena or warrant for their visit. Often, employers must consent to the inspection.
If you can, get copies of the complaints against the employer. Ask the OSHA compliance officer if you and your attorney can accompany the officer during the inspection.
Don’t Volunteer Information
Always provide direct, truthful answers to the OSHA officer’s questions. Do not, however, volunteer information to the OSHA compliance officer.
You will have plenty of opportunities to emphasize your commitment to safety and make a good impression, but the compliance officer will create these opportunities. For example, compliance officers typically ask to see your Hazard Communication program, so you don’t need to volunteer information about it prior to the compliance officer requesting it.
Do Limit the Scope of the Inspection
Limit the scope of the inspection by shutting down operations at the site while the OSHA compliance officer is present. You can also escort the OSHA compliance officer to target areas via pre-designated or strategic routes.
Keep the compliance officer focused on what’s relevant.
Do Identify Areas That You Believe Contain Trade Secrets
If the compliance officer collects information that may reveal intellectual property or trade secrets – such as photographs and environmental samples – request that they be labeled “confidential, trade secret” and that they not be disclosed except in accordance with the OSH Act.
Don’t Agree to Managerial Interviews Without an Attorney Present
Because the employer has a right to have their attorney present during managerial interviews, the attorney can coordinate with OSHA to determine when these interviews can occur.
If you have a question about whether an employee is managerial, consult your attorney.
Don’t Try to Strong Arm Your Way into an Employee Interview
The employer does not have a right to be present during an interview with a non-managerial employee, nor do company representatives or attorneys. You can ask to be present during the interview, but do not push if the inspector says no. Likewise, an employer does not have a right to receive a copy of an employee’s statement.
Instead of trying to strong arm your way into an employee interview, debrief interviewed employees after the inspection. Under no circumstances should you take any adverse action that can be deemed retaliation against an employee for providing information to OSHA.
Do Be Wary About Signing Statements
Be cautious during the closing conference. Even if you disagree with the OSHA officer’s findings, stay calm and courteous and know that you will have the chance to contest citations. Do ask questions in a respectful manner to elicit information from OSHA to understand the basis for OSHA’s conclusions.
If you can, fix any immediate, non-controversial violations that were pointed out during the walkaround or closing conference. This shows your good faith and commitment to safety. If a more complex solution is necessary, do not rush to issue a “quick fix.”
Do not admit to any violations or sign any statement unless it is exactly what you said while speaking to the compliance officer. You will not get into trouble for refusing to sign a statement that does not accurately represent what you said.
Often, the statements OSHA asks you to sign are not accurate representations of what was actually said.
Do Know the Reasons for an OSHA Investigation and Avoid One If Possible
Few worksite injuries automatically trigger an Occupational Safety and Health Administration (OSHA) investigation. OSHA will automatically investigate reports of fatalities and 2 or more inpatient hospitalizations, as well as injuries involving workers under 18. Otherwise, OSHA’s inspection priorities are:
- Imminent danger situations
- Severe injuries and illnesses (including fatalities, work-related inpatient hospitalizations, amputations, and eye loss injuries)
- Worker complaints
- Targeted inspections
- Follow-up inspections
Employers rarely receive advance notice of an OSHA inspection, so they should always be prepared for one. Preparation is especially important after reporting an accident or injury.
What If OSHA Inspected My Work Site, But Not Yet Issued a Citation?
If OSHA has inspected your work site, contact an attorney right away (if you haven’t already). In fact, we recommend that you contact an OSHA defense lawyer as soon as an accident occurs – before an OSHA compliance officer arrives to inspect your work site.
After the inspection, your OSHA defense lawyer can work with OSHA to resolve any questions about the work site and help reduce the chances that a citation will be issued. If a citation is issued, your attorney can help you contest the citation during internal settlement conferences and other parts of the OSHA process.
We Guide Employers Through the OSHA Inspection Process
Our team at Hendershot Cowart P.C. can guide you through the OSHA investigation process and be present for many of the relevant steps. We can also help you gather the appropriate information and have a strategy in place for the moments before, during, and after the investigation.
Few law firms have provided OSHA legal and regulatory guidance for as long as we have, and few offer our comprehensive legal services. We have been helping businesses overcome OSHA investigations and citations since 1987. We provide guidance during and after OSHA inspections, and we represent businesses in all dealings with OSHA, including administrative hearings and appeals.
Don’t face OSHA alone and put your business at risk. Do contact our firm immediately after a workplace injury or in the event of an unexpected inspection – call us at (713) 489-2028 or contact us online to get started today.